Citation Nr: 1304159 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-09 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than March 14, 2005, for a 10 percent evaluation for bilateral feet callosities. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. The Veteran filed a claim on March 14, 2005, for a compensable rating higher than 0 percent for his service-connected bilateral feet callosities. Although the RO's August 2005 rating decision initially denied the Veteran's claim for a compensable rating, it was appealed by the Veteran to the Board. 2. In June 2008, the Board partially granted the Veteran's March 2005 increased rating claim, raising the evaluation for service-connected bilateral feet callosities from 0 to 10 percent. 3. Next, in a July 2008 rating decision on appeal, the RO implemented the Board's partial grant, and assigned the Veteran a compensable, 10 percent rating for his service-connected bilateral feet callosities, retroactively effective from March 14, 2005, the date of receipt of the increased rating claim. 4. An unappealed November 1990 RO rating decision denied a previous increased rating claim for bilateral foot callosities greater than 0 percent. In the time period following that decision, there were no formal or informal claims for a higher, compensable rating for the service-connected bilateral foot callosities, until the March 14, 2005 claim was submitted. 5. The evidence does not show that the Veteran's bilateral foot callosities underwent an increase in severity that became factually ascertainable in the one-year time period prior to March 14, 2005; i.e., from March 2004 to March 2005. CONCLUSION OF LAW The criteria for an effective date earlier than March 14, 2005, for a 10 percent evaluation for bilateral feet callosities, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by a letter from the RO issued in May 2005 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. A more recent February 2010 letter complied with Dingess, particularly pertinent here, since it notified him of how VA determines assignments of disability ratings and effective dates. Since providing these notices, the AOJ has readjudicated the claim in the September 2012 SSOC - including considering the additional evidence received in response to this additional notice. Therefore, the timing defect in the provision of this additional notice, since it did not precede the initial adjudication of the claim, has been rectified ("cured"). See again Mayfield IV and Prickett, supra. The Veteran has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of his claim. The Veteran has this burden of proof as the pleading party, not VA. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claim during the course of this appeal. The RO has obtained service treatment records, and VA and identified private treatment records. The Veteran also submitted additional records and written statements in support of his claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Next, there is no reasonable possibility that a VA examination and/or medical opinion would aid in substantiating the Veteran's claim. Because the Veteran seeks an earlier effective date for the assignment of a 10 percent rating for bilateral feet callosities, any evidence regarding the current state of the disability in a VA examination would be irrelevant to his claim. Any current examination would be unable to provide relevant evidence regarding when VA received his pertinent claim for an increased rating, or whether the Veteran's increase in severity was shown to have occurred prior to March 14, 2005. Moreover, there is neither indication in the medical records nor contention by the Veteran that his disability manifested to a compensable, 10 percent rating during the one year period prior to the claim, i.e., there is no specific contention that an earlier effective date was "factually ascertainable" prior to March 14, 2005. The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis In the Veteran's August 2008 notice of disagreement (NOD), the Veteran stated, "I disagree with the effective date[,] it should be earlier." Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). A report of examination or hospitalization will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). The pertinent criteria for the effective date of an award for an increase in disability compensation are found in 38 U.S.C.A. § 5110(b)(2) (West 2002) and 38 C.F.R. §§ 3.400(o)(1), 3.400(o)(2) (2012). However, 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. Otherwise, the general default rule for earlier effective dates applies. See 38 C.F.R. § 3.400(o)(1); Harper v. Brown, 10 Vet App 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case, in the context of claims for an earlier effective date for an increased rating: (1) date entitlement arose: if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (38 C.F.R. § 3.400(o)(1)); or (2) factually ascertainable date: if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) date of claim: if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper v. Brown, 10 Vet App 125, 126 (1997). Determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2012). Appellate review of a rating decision is initiated by the timely submission of a notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, completed by the timely submission of a substantive appeal (VA Form 9 or equivalent). 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). It is helpful to summarize the procedural history of this case. The RO established service connection for calluses of both feet in a July 1971 rating decision, and assigned an initial 0 percent rating. Subsequently, the Veteran sought to obtain a compensable rating (i.e., higher than 0 percent) in a July 1990 increased rating claim, which the RO denied in an unappealed November 1990 rating decision. Because the November 1990 denial of a compensable rating was unappealed, it became final and binding on the Veteran. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). So, the Board cannot reach back prior to November 1990 in considering assignment of an earlier effective date for his compensable, 10 percent rating. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The issue of CUE in a specific prior RO or Board decision has not been raised by the Veteran and, therefore, is not before the Board at this time. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran has been rated under Diagnostic Code 5276 for his bilateral callosities. Under Diagnostic Code 5276, a non-compensable (zero percent) rating is for application when there is mild disability relieved by built-up shoe or arch support. A 10 percent rating is for application when there is moderate disability evidenced by weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, bilaterally or unilaterally. A 30 percent rating is for application when there is severe bilateral (or 20 percent for severe unilateral) disability with objective evidence of marked deformity such as pronation or abduction, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276. Highly pertinent to the present appeal, on March 14, 2005, the Veteran next filed another increased rating claim for his bilateral feet callosities, for a compensable rating beyond 0 percent. This claim was denied by the RO's August 2005 rating decision, which the Veteran proceeded to appeal to the Board. The Veteran received a VA examination in May 2005, where he reported having long-standing calluses that he is forced to shave down once a week to reduce the pain. However, it does not appear that entitlement to the higher 10 percent rating, under the rating criteria of Diagnostic Code 5276, was shown by the May 2005 examination results. In contrast, the April 2007 VA examiner noted that there was mild inward bowing of the Achilles tendons; and also noted that he experienced pain on use of his feet and could not stand or sit for long periods of time. In its June 2008 decision, the Board partially granted the Veteran's increased rating claim for bilateral foot callosities, raising the disability rating assignment from 0 to a compensable, 10 percent rating. In particular, the Board found the evidence of record shows that the Veteran's service-connected bilateral callosities is manifested by mild inward bowing of the Achilles tendons and pain on use of the feet. Thereafter, in the July 2008 rating decision presently on appeal, the RO attempted to implement the Board's partial grant, assigning a compensable rating 10 percent; and assigned a rating of 10 percent, retroactively effective from March 14, 2005, the date that the Veteran most recently filed for an increased evaluation. The present appeal ensued for an earlier effective date for the assignment of the increased, 10 percent disability rating. In considering whether the Veteran is entitled to an earlier effective date, the Board has closely reviewed the claims file. As discussed below, the Veteran's date-of-claim was on March 14, 2005, whereas the date that the increase is shown to have occurred on April 18, 2007. In short, because the increase is shown to have occurred only after the increased rating claim was received, there is no possibility to establish an effective date earlier than the date-of-claim in March 2005. Following the final November 1990 rating decision, a review of the claims file shows VA did not receive any further communication from the Veteran concerning the service-connected bilateral callosities until March 14, 2005; and there were also no additional evidentiary submissions from the Veteran until after that date. Therefore, March 14, 2005 (the date of receipt stamped by the RO on the claim) is the date that the Veteran's increased rating claim was received for purposes of establishing an effective date for the current 10 percent rating evaluation. 38 C.F.R. § 3.1(p); 38 C.F.R. § 3.155(a); Brannon, 12 Vet. App. 32, 35; Talbert, 7 Vet. App. at 356-57. However, the law provides that for an award of increased compensation, the effective date will be the earliest date that it is factually ascertainable that an increase in disability occurred, if the increased-rating claim is received within one year from that date. In order to be entitled to an effective date prior to March 14, 2005, the date his increased rating claim was received, it must be "factually ascertainable" that he was entitled to a higher rating during the period from March 2004 to March 2005. Within this one-year window, there are simply no communications from the Veteran that might help establish an increased disability rating. Nor does the medical evidence suggest that an increase was factually ascertainable during between March 2004 and March 2005. A review of the record shows there are VA outpatient treatment records, dated from March 2001 through December 2004, but these are limited to treatment for back and hypertension disabilities, and not involving his bilateral foot callosities. Similarly, while there are contemporaneous private treatment records, dated from October 2004 to June 2005, these are limited to treatment for back and right hip disabilities following a motor vehicle accident, and again, do not involve his bilateral foot callosities. Simply put, the medical and lay evidence do not establish that his bilateral callosities underwent an increase in severity that became factually ascertainable in the one-year time period prior to March 14, 2005. Rather, the evidence of record reflects that the date that the increase to a 10-percent evaluation was first shown to have occurred on April 18, 2007, the date of a VA examination, although it could be argued that some of these symptoms were apparent at the earlier May 2005 VA examination. Ultimately, this is inconsequential to the claim for an earlier effective date for the increased evaluation. Regardless of whether the Veteran's date of entitlement arose at the May 2005 or April 2007 VA examinations, the Board emphasizes that both of these dates fell after the date of the March 2005 claim. Under VA regulation, there is simply no authority for the Board to allow an even earlier date than the date-of-claim. Accordingly, as the evidence does not suggest that the Veteran's bilateral foot callosities underwent an increase in severity in the one year prior to his March 2005 claim, the Board finds that a 10 disability rating did not become factually ascertainable during the applicable time period, so as to warrant an effective date earlier than the date of his increased-rating claim, March 14, 2005. Therefore, the Board finds that the preponderance of the evidence is against an effective date earlier than March 14, 2005, for the award of the 10 percent disability rating for bilateral foot callosities. ORDER An effective date earlier than March 14, 2005, for the assignment of a 10 percent disability rating for bilateral foot callosities, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs